POLITICIZING THE SUPREME COURT
Vincent J. Samar*
I. INTRODUCTION
On February 13, 2016, the unexpected passing of United States
Supreme Court Justice Antonin Scalia left a vacancy on the Supreme Court
in the midst of a presidential election year.1 Because this particular election
was fought with greater vitriol than any other recent election, the
appointment process did not proceed in the same fashion as previous
appointments.
Within days of Justice Scalia’s death,2 the Senate leadership, in efforts
to prevent a shift to a more liberal Court, announced the Senate would not
consider any replacement nominated by President Barack Obama.3 Soon
thereafter, President Obama nominated Judge Merrick Garland4 to fill the
*
1.
2.
3.
4.
Adjunct Professor of Law at Chicago-Kent College of Law, Illinois Institute of Technology, and
Philosophy Lecturer at Loyola University Chicago. The author thanks Professors Mark Strasser
of Capital University School of Law, and Jona Goldschmidt of Loyola University Chicago, for
their comments. He also thanks the law librarians at Chicago-Kent and Loyola University
Chicago for their assistance. This Article is dedicated to the late Professor Michael O. Sawyer of
Syracuse University, who introduced the author to constitutional law.
Adam Liptak et al., How a Vacancy on the Supreme Court Affected Cases in the 2015–16 Term,
N.Y. TIMES (June 27, 2016), http://www.nytimes.com/interactive/2016/02/14/us/politics/howscalias-death-could-affect-major-supreme-court-cases-in-the-2016-term.html?_r=0.
Amy Brittain & Sari Horwitz, Texas Sherriff’s Report Reveals More Details on Supreme Court
Justice Scalia’s Death, WASH. POST (Feb. 23, 2016), https://www.washingtonpost.com/
world/national-security/texas-sheriff-releases-report-on-supreme-court-justice-scaliasdeath/2016/02/23/8c0bdb0c-da82-11e5-891a4ed04f4213e8_story.ht ml.
President Obama
nominated Judge Merrick Garland to succeed Justice Scalia on March 16, 2016. Juliet Eilperin &
Mike DeBonis, President Obama Nominates Merrick Garland to the Supreme Court, WASH.
POST (Mar. 16, 2016), https://www.washingtonpost.com/world/national-security/Presidentobama-to-nominate-merrick-garland-to-the-supreme-court-sources-say/2016/03
/16/3bc90bc8eb7c-11e5-a6f3-21ccdbc5f74e_story.html. Although few presidents have filled Supreme Court
vacancies in their final year, the Senate has never taken more than 125 days to confirm a
successor; the average has been 25 days before either consent is afforded or the nominee is
withdrawn. How Long Does It Take Before to Confirm a Supreme Court Nominee?, N.Y. TIMES
(Feb. 13, 2016), http://www.nytimes.com/interactive/2016/02/13/us/how-long-does-it-take-toconfirm-a-supreme-court-nominee.html?_r=0. The delay in this appointment caused over twothirds of the Court’s 2016–17 term to be carried out with only eight justices.
See Manu Raju et al., Senate GOP: No Hearings for Supreme Court Nominee, CNN (Feb. 23,
2016, 9:39 PM), http://www.cnn.com/2016/02/23/politics/joe-biden-supreme-court-senaterepublicans/index.html (discussing the Senate’s refusal to hold confirmation proceedings until
President Obama’s successor takes office).
Judge Merrick Garland serves as the chief judge of the United States Court of Appeals for the
District of Columbia Circuit. Del Quentin Wilber & David G. Savage, Oklahoma City Bombing
1
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vacancy.5 The Senate, however, remained steadfast in its refusal to hold
confirmation hearings.6
The conflict between the Republican controlled Senate and the
outgoing Democratic President—presented with his third opportunity to
nominate a justice—sparked an intense constitutional debate over the
appointment process itself.7 While Article II of the Constitution8 provides
that the president, with the “Advice and Consent” of the Senate, “shall
appoint” a replacement,9 there is much disagreement over whether the
Senate has a constitutional obligation to advise and consent on the
president’s nominee in a timely manner. If so, another issue arises
regarding how to enforce this obligation. If not, is the Senate’s refusal only
permitted during an election year,10 or can the Senate refuse indefinitely?11
The problem arises because, as discussed infra, the Constitution expressly
gives the Senate the power to advise and consent, but it does not specify
how the Senate must exercise this power.12
This Article argues the Senate has a constitutional duty to advise and
consent in a timely manner. More importantly, it argues the Senate’s
responsibility to fulfill its constitutional duty is a paramount political—as
opposed to legal—obligation that the Constitution imposes directly on
senators to preserve the integrity of the Court and to maintain the political
morality of democracy in the process. Under the United States’ system of
government, senators are occasionally summoned to fulfill “higher law”
5.
6.
7.
8.
9.
10.
11.
12.
Deeply Affected Supreme Court Nominee Merrick Garland, L.A. TIMES (Mar. 16, 2016, 1:51
PM), http://www.latimes.com/nation/la-na-court-obama-garland-20160316-story.html.
Chief
Judge Garland is also a former federal prosecutor well-known for his prosecutorial work in the
Oklahoma City bombing that killed 168 people, including 19 children. Id.
Id.
Martha Minow & Deanell Tacha, US Needs a Government of Laws, Not People, BOSTON GLOBE
(Mar. 22, 2016), http://www.bostonglobe.com/opinion/2016/03/21/needs-government-laws-notpeople/34oNmHmUH3TYEIbtXCQylM/story.html?s_campaign=8315 (noting that the Senate’s
refusal is unwarranted, considering the fact that Chief Judge Garland has “18 years of federal
judicial service . . . [a] reputation as one of the most outstanding judges in the country, . . . [and] a
lifetime devotion to public service as a prosecutor, justice official, judge, and lawyer.”).
Andy Schmookler, How Obama Can Break the Impasse on the Supreme Court Vacancy,
HUFFINGTON POST (May 14, 2016), http://www.huffingtonpost.com/andy-schmookler/howobama-can-break-the-i_b_9971588.html.
All references to the Constitution not otherwise specified are to the U.S. Constitution.
U.S. CONST. art. II, § 2, cl. 2.
See Michael Bowman, US Supreme Court Vacancy Sparks Constitutional Debate, VOA (Apr. 26,
2016, 3:18 PM), http://www.voanews.com/a/us-supreme-court-vacancy-sparks-constitutionaldebate/3303706.html (describing the “partisan tug-of-war” over the Supreme Court nomination
process).
McCain Suggests GOP Would Oppose Clinton Supreme Court Picks, SALON (Oct. 17, 2016, 2:15
PM),
http://www.salon.com/2016/10/17/mccain-suggests-gop-would-oppose-clinton-supremecourt-picks/.
See infra Part III.
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Politicizing the Supreme Court
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responsibilities—meaning specific constitutional obligations—which
includes advising and consenting on judicial nominees. Determining the
specific actions required, and the temporal limitations on performance of
these actions, necessitates an examination of the Constitution’s text, the
Framers’ intent in devising our nation’s political institutions, and,
normatively, what the Constitution sought to achieve through creating a
representative government.
Part II explains the Senate’s concerns about the ideological direction
the Court may follow without a conservative replacement for Justice Scalia.
Part III sets forth relevant constitutional provisions along with evidence of
the Framers’ intent, showing the Supreme Court was established and
designed to function outside of normal politics as an independent branch of
government. Part IV discusses the justiciability limitations that may
prevent courts from resolving the issue. Part V offers guidelines for
maintaining the integrity of the confirmation process in light of the
Constitution’s higher law by limiting the Senate’s evaluation to the
nominee’s integrity, legal expertise, judicial philosophy, temperament, and
concern for the rights people currently possess. Part VI presents a political
philosophy for peaceful operation of a pluralistic democratic society, which
comports with the guidelines in Part V. Finally, Part VII concludes that the
survival of the constitutional order is dependent on the dedication of the
political branches to fulfilling their higher law responsibilities as a matter of
political morality, especially amidst serious political disagreements.
II. WHY JUSTICE SCALIA’S REPLACEMENT MATTERS
Justice Scalia was the leading conservative voice on the Court during
his tenure. Justice Scalia often invoked the judicial philosophies of
“originalism” and “textualism.”13 Textualism involves interpreting statutes
to accord with the plain language of the text, while originalism involves
interpreting the meaning of the Constitution by discerning the Framers’
expectations at the time it was drafted.14 In general, Justice Scalia was a
fairly predictable proponent of conservative outcomes; he was, by way of
the rhetoric in his often vehement and sometimes sarcastic dissents, a
supporter of conservative values.15 These values are what conservatives
13.
14.
15.
See generally ANTONIN SCALIA, A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE
LAW, 23-25, 37–41 (Amy Gutmann ed., Princeton Univ. Press 1997).
See id. at 40. The legal philosopher, Ronald Dworkin, has argued that Justice Scalia’s two forms
of interpretation are not the same. See id. at 119–27 (Comment by Ronald Dworkin).
See David G. Savage, Supreme Court Justice Antonin Scalia Dies at 79: Ardent Conservative
Fought Liberalism’s Tide, L.A. TIMES (Feb. 13, 2016), http://www.latimes.com/local/lanow/lame-antonin-scalia-20160213-story.html.
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believe will be lost—and what liberals hope to limit—if a liberal president
appoints Justice Scalia’s replacement.16
Some of the most contentious cultural and political issues of our
time—including the recognition of same-sex marriage,17 the right to bear
arms,18 and a woman’s right to have an abortion19—were resolved by very
close votes on the Supreme Court. Justice Scalia, for example, sided with
the five-to-four majority in the landmark Second Amendment cases District
of Columbia v. Heller20 and McDonald v. City of Chicago.21 In other
monumental decisions that split the Court five-to-four, such as Obergefell v.
Hodges,22 legalizing same-sex marriage, and Planned Parenthood v.
Casey,23 reaffirming a woman’s right to an abortion prior to viability,
Justice Scalia vigorously dissented. Justice Scalia’s death leaves these
close decisions vulnerable to various legal challenges from parties who
object to the Court’s previous determinations and the rights these decisions
confer.
Moreover, equally contentious issues will inevitably wind through the
lower courts to the Supreme Court.24 The determination of these cases, if
decided in the next term, will be influenced by the judicial philosophy25 of
the nominee ultimately appointed. For these reasons, both parties are
concerned about the future nominee, as the fate of many current and future
rights may be held in the balance. The Republican Leadership, however,
took its concern to the next level by halting the confirmation process under
President Obama altogether.
16.
17.
18.
19.
20.
21.
22.
23.
24.
25.
SCALIA, supra note 13, at 23–28, 119–27.
See generally Obergefell v. Hodges, 135 S. Ct. 2584 (2015) (holding by a five-to-four majority
establishing a right to same-sex marriage).
See generally District of Columbia v. Heller, 554 U.S. 570 (2008) (resulting in a five-to-four
majority holding that the Second Amendment protects an individual’s right to bear arms
unconnected with forming a militia).
See, e.g., Roe v. Wade, 410 U.S. 113 (1973) (ruling in favor of a woman’s right to have an
abortion with two dissenting justices); Planned Parenthood v. Casey, 505 U.S. 833 (1972)
(reaffirming the central holding in Roe, but with only five justices joining the majority).
See generally 554 U.S. 570 (2008) (holding the Second Amendment protects an individual’s right
to bear arms unconnected with forming a militia).
See generally 561 U.S. 742 (2010) (holding the Second Amendment applies to the states through
the Due Process Clause of the Fourteenth Amendment).
See generally Obergefell, 135 S. Ct. 2584 (extending the fundamental right to marry to same-sex
couples and requiring states to provide marriage licenses to same-sex couples).
See generally Planned Parenthood, 505 U.S. 833 (reaffirming the central holding in Roe that a
woman has a constitutional right to obtain an abortion prior to viability).
See, e.g., Holt v. Hobbs, 135 S. Ct. 853 (2015) (involving a prison policy that prevented a Muslim
prisoner from growing a short beard; the Court found this policy violated the Religious Land Use
and Institutionalized Persons Act). Depending on how a future Supreme Court interprets
precedent like Holt, these decisions have potential to effect broader issues concerning religious
liberty that will likely implicate equality concerns.
Specifically, how the future justice interprets the Constitution.
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Politicizing the Supreme Court
5
Senate Majority Leader, Mitch McConnell, defended the Senate’s
inaction, stating that postponing the nomination process allows the
American people to decide who should be on the Court through the next
elected president.26
While the legitimacy of this reasoning was
questionable and likely a pretext for underlying political motivations, the
troubling aspect of the Senate’s obstructionism is the dangerous precedent it
sets for future Supreme Court nominees whenever the presidency and the
Senate are controlled by different political parties.27 Part III discusses the
constitutional provisions supporting the contention that the Senate has a
constitutional duty and explains how the Senate’s inaction thwarts the
purpose of the nomination process.
III. CONSTITUTIONAL REQUIREMENTS
Article III provides: “The judicial Power of the United States, shall be
vested in one supreme Court, and in such inferior Courts as the Congress
may from time to time ordain and establish.”28 The Framers made the
judicial branch separate and distinct to ensure the judiciary served as an
independent check on the legislative and executive branches.29 Alexander
Hamilton articulated the Framers’ opposition to making the Supreme Court
part of Congress in Federalist No. 81, stating:
That there ought to be one court of supreme and final jurisdiction, is a
proposition which is not likely to be contested. The reasons for it have
been assigned in another place, and are too obvious to need repetition.
The only question that seems to have been raised concerning it, is,
whether it ought to be a distinct body or a branch of the legislature. The
same contradiction is observable in regard to this matter which has been
remarked in several other cases. The very men who object to the Senate
as a court of impeachments, on the ground of an improper intermixture of
powers, advocate, by implication at least, the propriety of vesting the
ultimate decision of all causes, in the whole or in a part of the legislative
body . . . . To insist upon this point, the authors of the objection must
renounce the meaning they have labored to annex to the celebrated
maxim, requiring a separation of the departments of power. It shall,
nevertheless, be conceded to them . . . that it is not violated by vesting the
26.
27.
28.
29.
David M. Herszenhorn, Mitch McConnell Tells Garland the Senate Will Not Act, N.Y. TIMES
(Mar. 16, 2016), http://www.nytimes.com/live/obama-supreme-court-nomination/mcconnell-tellsgarland/.
Adam Liptak, Study Calls Snub of Obama’s Supreme Court Pick Unprecedented, N.Y. TIMES
(Jun. 13, 2016), http://www.nytimes.com/2016/06/14/us/politics/obama-supreme-court-merrickgarland.html?smprod=nytcore-ipad&smid=nytcore-ipad-share.
U.S. CONST. art. III, § 1.
THE FEDERALIST NO. 81, at 2 (Alexander Hamilton) (Clinton Rossiter ed., 1961).
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[Vol. 41
ultimate power of judging in a part of the legislative body. But though
this be not an absolute violation of that excellent rule, yet it verges so
nearly upon it, as on this account alone to be less eligible than the mode
preferred by the convention. From a body which had even a partial
agency in passing bad laws, we could rarely expect a disposition to temper
and moderate them in the application. The same spirit which had operated
in making them, would be too apt in interpreting them; still less could it be
expected that men who had infringed the Constitution in the character of
legislators, would be disposed to repair the breach in the character of
judges.30
These concerns are further supported by constitutional provisions
illustrating the Framers’ intent to keep the Court separate from the politics
of the political branches.31 Article III, for example, provides that the
justices of the Supreme Court, along with all federal judges, are to hold
“their Offices during good Behaviour . . . .”32 This provision grants federal
judges life tenure,33 subject only to impeachment for high crimes or
misdemeanors by the House of Representatives,34 followed by a trial in the
Senate;35 moreover, this precludes Congress from manipulating the
composition of the Court by arbitrarily replacing justices for making a
decision unfavorable to the controlling political party. Hamilton’s belief,
that this provision requires a different kind of evaluation for members of the
judiciary from that of the political branches, is exposed when he writes:
There is an absurdity in referring the determination of causes, in the first
instance, to judges of permanent standing; in the last, to those of a
temporary and mutable constitution. And there is a still greater absurdity
in subjecting the decisions of men, selected for their knowledge of the
laws, acquired by long and laborious study, to the revision and control of
men who, for want of the same advantage, cannot but be deficient in that
knowledge. The members of the legislature will rarely be chosen with a
view to those qualifications which fit men for the stations of judges; and
as, on this account, there will be great reason to apprehend all the ill
consequences of defective information, so, on account of the natural
propensity of such bodies to party division, there will be no less reason to
30.
31.
32.
33.
34.
35.
Id.
See U.S. CONST. art. III, § 1; id. art. II, § 4; id. art. I, § 3, cl. 6.
Id. art. III, § 1.
Id.
Id. art. II, § 4.
Id. art. I, § 3, cl. 6.
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Politicizing the Supreme Court
7
fear that the pestilential breath of faction may poison the fountains of
justice.36
As further proof that partisan divides should not hamper the operation
of the judiciary, Article III expressly prohibits Congress from diminishing
the compensation judges receive during “their Continuance in Office.”37
This limitation shows the Framers’ intent to prevent Congress from
politicizing the judiciary, for example, by threatening to reduce judges’
salaries for opinions unfavorable to the political party that dominates
Congress. Article III does, however, grant Congress authority to alter the
Court’s appellate jurisdiction38 and to set the number of seats on the
Court.39 Although Article III does not specify when it is appropriate to
change the number of justices, it presumably includes circumstances where
the Court is unable to do its job effectively; such circumstances would not
include delaying an appointment in hopes that the next president nominates
a candidate more favorable to the party controlling Congress.
Article III’s provisions, along with Article II and the Federalist
Papers, show that the Framers intended to maintain the balance of powers
by ensuring the judiciary remained isolated from the politics affecting the
executive and legislative branches. Nevertheless, is the confirmation
process for Supreme Court appointees an instance where partisan control
can invade an otherwise non-political branch of government? The answer
to this question requires an examination of the components of the relevant
constitutional provisions.
A. The Senate’s Role and Temporal Limits
When there is a vacancy, the Constitution provides that the president
“shall nominate, and by and with the Advice and Consent of the Senate,
36.
37.
38.
39.
THE FEDERALIST NO. 81, supra note 29, at 485.
U.S. CONST. art. III, § 1.
Id. art. III, § 2, cl.2.
See id. art. I, § 3, cl. 6 (indicating that there will be one Chief Justice but leaving the number of
justices unaddressed). The Judiciary Act of 1789 set the number of justices at six; since 1869,
however, the number of justices has been nine. Elizabeth Nix, 7 Things You Might Not Know
About the U.S. Supreme Court, HISTORY (Oct. 8, 2013), http://www.history.com/news/historylists/7-things-you-might-not-know-about-the-u-s-supreme-court. During the Administration of
President Franklin Delano Roosevelt, there was some discussion to expand the size of the Court
after several pieces of President Roosevelt’s New Deal legislation were struck down as
unconstitutional; however, this never passed. Id. Some have suggested this was due to Justice
Roberts’s switch to upholding New Deal legislation beginning with West Coast Hotel Co. v.
Parrish, 300 U.S. 379 (1937). See, e.g., Brian T. Goldman, The Switch in Time that Saved Nine:
A Study of Justice Owen Roberts’s Vote in West Coast Hotel Co. v. Parish, U. PA.
SCHOLARLYCOMMONS (2012), http://repository.upenn.edu/cgi/viewcontent.cgi?article=1181&con
text=cur ej.
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shall appoint . . . Judges of the supreme Court . . . .”40 Here, the
Constitution’s direction to both the president and the Senate is not
conditional, thus ensuring the obligation takes effect immediately upon a
vacancy. Moreover, Article II, Section 2, further details the president’s
initial role in the appointment process by granting the president the “power
to fill up all Vacancies that may happen during the Recess of the Senate, by
granting Commissions which shall expire at the End of their next
Session.”41 In conjunction, these provisions acknowledge it is the
president’s sole power to make nominations—both temporary and
permanent—subject only to his or her judgment concerning the nominee’s
qualifications.42
However, the fact that recess appointments automatically expire “at
the End of [the Senate’s] next session”43 shows the Framers intended for the
Senate to check the president’s powers with regard to permanent
nominations, by requiring the Senate’s advice and consent.44 This ensures
the nominee holds the proper qualifications, temperament, and overall
suitability for the Court. These limitations on the president’s power show
that the Senate is intended to be a coordinate political partner in the process
of filling Supreme Court vacancies.
The Senate’s role is further discussed in Article I, Section 5, which
provides that the Senate has the power to “determine the Rules of its
Proceedings.”45 This power allows the Senate to decide, among other
matters, how to advise and consent on Supreme Court nominees and gives
the Senate the ability to control how the confirmation process proceeds.46
This ordinarily occurs after a formal hearing where the nominee testifies
before the Senate Judiciary Committee regarding his or her background,
judicial temperament, concern for stare decisis and existing rights, and
40.
41.
42.
43.
44.
45.
46.
U.S. CONST. art. II, § 2, cl. 2.
Id. art II, § 2, cl. 3.
See Lyle Denniston, Is a Recess Appointment to the Court an Option? SCOTUSBLOG (Feb. 14,
2016, 12:24 AM), http://www.scotusblog.com/2016/02/is-a-recess-appointment-to-the-court-anoption/ (discussing the president’s power for both permanent and temporary recess appointments).
U.S. CONST. art. 2, § 2, cl. 3.
In at least two instances, recess appointments were made permanent upon the Senate’s
confirmation after returning into session. See Dave Boyer, Obama Could Use Recess
Appointment to Bypass Congress, Install Justice, WASH. TIMES (Feb. 15, 2016),
http://www.washingtontimes.com/news/2016/feb/15/obama-could-fill-supreme-court-vacancywith-recess/ (discussing the appointments of Chief Justice Earl Warren and Justice Brennan). In
National Labor Relations Board v. Noel Canning, the Supreme Court set out criteria concerning
how long the Senate must be out of session to determine if a recess appointment is constitutionally
appropriate. See generally 134 S. Ct. 2550 (2014) (holding, among other things, that the Recess
Appointments Clause extends to vacancies arising before recesses).
U.S. CONST. art. I, § 5, cl. 2.
See id. art. II, § 2, cl. 2.
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Politicizing the Supreme Court
9
overall judicial philosophy; other witnesses—supporting or opposing the
nominee—may also speak at the hearing.47 After the hearing, the Senate
Judiciary Committee reports its confirmation recommendation to the full
Senate.48 These provisions show the Senate has an important role in the
process that is to be performed promptly.
B. Duties and Principles of Constitutional Interpretation
The Constitution’s plain language, prescribing the Senate’s role in the
confirmation process, shows this duty is mandatory. Article II uses the
word “shall” in its declaration that the president “shall nominate, and by
and with the Advice and Consent of the Senate, shall appoint . . . Judges of
the supreme Court . . . .”49 In this context, “shall” is defined as a
“command, promise, or determination” to act.50 While the semantics of the
first “shall” are initially placed on the president, the Senate is also
commanded to advise and consent to fulfill the purpose of the second
“shall” before “appoint,” which cannot occur absent the Senate doing its
job. Otherwise, the Constitution’s creation of the judicial branch would be
entirely at the Senate’s discretion, which contradicts Hamilton’s concerns
expressed in Federalist No. 81.51
In other words, the Constitution’s mandate that the president “shall
nominate, and by and with the Advice and Consent of the Senate, shall
appoint…Judges of the supreme Court”52 is futile if the Senate is permitted
to delay the proceedings for political purposes. The president’s duty and
the Senate’s duty go together as indicated by “shall appoint . . . Judges of
the supreme Court.” The word “shall” is placed before “appoint” to
emphasize the Senate’s separate duty to determine the nominee’s
suitability. Therefore, the Senate’s duty is not optional; appointment can
only occur after both the president’s and the Senate’s duties are performed.
47.
48.
49.
50.
51.
52.
See The Supreme Court of the United States, U.S. SENATE COMM. ON JUDICIARY,
https://www.judiciary.senate.gov/nominations/supreme-court.
When a vacancy occurs on the Supreme Court, the President of the United States is
given the authority, under Article II of the United States Constitution, to nominate a
person to fill the vacancy. The nomination is referred to the United States Senate,
where the Senate Judiciary Committee holds a hearing where the nominee provides
testimony and responds to questions from members of the panel. Traditionally, the
Committee refers the nomination to the full Senate for consideration.
Id.
Id.
U.S. CONST. art II, § 2, cl 2.
See Shall, MERRIAM-WEBSTER, http://www.merriam-webster.com/dictionary/shall (last visited
Oct. 30, 2016) (“[U]sed in laws, regulations, or directives to express what is mandatory.”).
See THE FEDERALIST NO. 81 (Alexander Hamilton).
U.S. CONST. art II, § 2, cl. 2 (emphasis added).
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[Vol. 41
Thus, interpreting the president’s duty to be mandatory while the Senate’s
to be optional is not logical because such an interpretation undermines the
whole appointment process the Constitution sets forth.
The second “shall,” and the Constitution’s establishment of an
independent judiciary, show that the Senate has a duty-bound role to advise
and consent, meaning the Senate has a duty to make a determination either
approving or disapproving the president’s nominations. Any other
interpretation undercuts the Framers’ intention to separate powers among
the branches. For example, interpreting the Senate’s duty as optional, but
the president’s duty as mandatory, fails to afford respect to the president’s
role and contradicts how the provision was meant to operate in the
Constitution, since “shall appoint” requires the agreement of both the
president and the Senate, and without this requirement, the use of “shall”
becomes effectively impotent.
Moreover, even going beyond the plain meaning of the words to
considering additional principles of constitutional construction proves that
“shall,” in this context, means “[h]as a duty to . . . [or] required to.”53 For
example, functional or structural methods of constitutional interpretation
focus on the structure of the Constitution and how the document is intended
to function as a whole.54 These methods adhere to the maxim that “no one
can properly understand a part until he has read the whole.”55 In other
words, the Constitution must be read as a whole and in such a way as to
make each of its provisions consistent with every other provision, unless
amended or interpreted differently by the Supreme Court.56
53.
54.
55.
56.
Shall, BLACK’S LAW DICTIONARY (10th ed. 2014) (“This is the mandatory sense that drafters
typically intend and that courts typically uphold.”).
Principles
of
Constitutional
Interpretation,
FEDERALIST
PAPERS
PROJECT,
http://thefederalistpapers.org/principles-of-constitutional-interpretation (last visited Oct. 29,
2016).
Principles of Constitutional Construction, CONSTITUTION SOCIETY, http://www.constitution.org/
cons/prin_cons.htm (last visited Sept. 25, 2016).
See id. In this regard, the Constitution Society has stated:
Constitutional interpretation, or constitutional construction, the term more often used
by the Founders, is the process by which meanings are assigned to words in a
constitution, to enable legal decisions to be made that are justified by it. Some
scholars distinguish between “interpretation”—assigning meanings based on the
meanings in other usages of the terms by those the writers and their readers had
probably read, and “construction”—inferring the meaning from a broader set of
evidence, such as the structure of the complete document from which one can discern
the function of various parts, discussion by the drafters or ratifiers during debate
leading to adoption (“legislative history”), the background of controversies in which
the terms were used that indicate the concerns and expectations of the drafters and
ratifiers, alternative wordings and their meanings accepted or rejected at different
points in development, and indications of meanings that can be inferred from what is
not said, among other methods of analysis.
Id.
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Article II, Section 2, for example, begins with “[the president] shall
have the Power, by and with the Advice and Consent of the Senate, to make
Treaties . . . .”57 Here, “shall have the Power,” unlike the language “shall
appoint” used to describe the dual roles of the president and the Senate in
making Supreme Court appointments, implies that the treaty power is at the
discretion of the president. This shows that the Framers chose to make a
power optional in various places in the Constitution, but chose not to do so
in regards to the Senate’s duty to advise and consent on Supreme Court
nominees.
Similarly, interpreting the Constitution as a whole casts light on the
governmental structure of the document, which devises the power among
the three branches. The Framers’ decision to create three separate branches
only to have the Senate effectively nullify the third would render this
formation meaningless. The Senate’s role is to ensure the nominee is
qualified, and it is in fulfilling that role where the Senate’s duty lies. The
combination of the president’s duty with the Senate’s duty is how the
appointment process is required to proceed—without both, appointment
cannot occur.
C. Separation of Powers
Interpreting the Senate’s duty as optional undermines the Supreme
Court’s ability to function as a non-political institution by inhibiting its
ability to provide an independent check over the other two political
branches. While the Senate is supposed to play a part in the process, the
Senate usurped the power of all the branches’ functions by delaying the
process and disregarding the needs, obligations, recommendations, and
concerns of the other branches based solely on political motivations.
The Senate’s overstep, allowing it to make the ultimate decision,
creates an imbalance of power among the branches. Indeed, the language
contained in Article I and Article II, in conjunction with Article III’s
creation of the Judiciary as the third branch of government, imposes a
constitutional duty on the Senate to advise and consent on the president’s
nominee whenever a vacancy occurs. This role is essential to ensure that
the Judicial Branch remains viable and non-political. Abandoning this duty
for political reasons allows the Senate to usurp the powers of the other
branches and affords the Senate a purely partisan veto, rather than a veto
based on the nominee’s suitability as intended.58
57.
58.
U.S. CONST. art. II, § 2, cl. 2 (emphasis added).
See Raju et al., supra note 3.
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Inserting politics into the confirmation process contradicts the
Framers’ vision of a non-political branch of government. Therefore, to
fulfill its constitutional duty and to preserve its integrity, the Senate must
always make a decision on the president’s nominee based on the nominee’s
fitness for the position.59 The Senate should never, however, refuse to
participate in the appointment process that the Constitution obligates it to
take part in. Although this analysis of the relevant constitutional provisions
suggests the Senate has a duty to act timely, who is responsible for ensuring
the Senate performs this duty?
IV. JUSTICIABILITY CONCERNS
Unfortunately, it is unlikely courts will consider the Senate’s
obligation because of the long-standing “political question doctrine.”60
Since Marbury v. Madison,61 the Supreme Court has generally held that socalled political questions are not justiciable, meaning that unlike legal
questions involving the interpretation of federal law, the courts are not the
appropriate arena for resolving political disputes.62
In Marbury, the Supreme Court first recognized the Court should
maintain its independent judicial role by not interfering with political
questions.63 There the U.S. Secretary of State was issued a mandamus to
59.
60.
61.
62.
63.
See discussion infra Part V.
See ERWIN CHEMERINSKY, CONSTITUTIONAL LAW: PRINCIPLES AND POLICIES, 129–30 (3rd ed.
2006) (footnotes omitted), for a discussion of the political question doctrine.
See generally Marbury v. Madison, 5 U.S. 137 (1803).
[W]here the heads of departments are the political or confidential agents of the
executive, merely to execute the will of the President, or rather to act in cases in which
the executive possesses a constitutional or legal discretion, nothing can be more
perfectly clear than that their acts are only politically examinable.
Id. at 166.
See generally Baker v. Carr, 369 U.S. 186 (1962) (providing the classic statement of the political
question doctrine). In Baker, the Court readily upheld redistricting challenges to avoid population
malapportionment resulting from the way the Tennessee legislature drew the legislative districts.
Id. While in effect limiting the political question doctrine, the Court nevertheless stated:
Prominent on the surface of any case held to involve a political question is found a
textually demonstrable constitutional commitment of the issue to a coordinate political
department; or a lack of judicially discoverable and manageable standards for
resolving it; or the impossibility of deciding without an initial policy determination of
a kind clearly for nonjudicial discretion; or the impossibility of a court’s undertaking
independent resolution without expressing lack of the respect due coordinate branches
of government; or an unusual need for unquestioning adherence to a political decision
already made; or the potentiality of embarrassment from multifarious pronouncements
by various departments on one question.
Id. at 217.
See generally Marbury, 5 U.S. 137.
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deliver commissions signed by President John Adams.64 The issue arose
after the Federalist Administration of President Adams was not reelected,
and President Thomas Jefferson, a Democratic-Republican, chose to
disregard last minute appointments made by the Adams Administration.65
In reaching his decision, Chief Justice Marshall articulated the
responsibilities of the office of the Secretary of State as follows:
As the agent of the President, [the Secretary of State] is not liable to a
mandamus; but as a recorder of the laws of the United States; as keeper of
the great seal, as recorder of deeds of land, of letters patent, and of
commissions, &c. he is a ministerial officer of the people of the United
States. As such he has duties assigned him by law, in the execution of
which he is independent of all control, but that of the laws. It is true he is
a high officer, but he is not above law. It is not consistent with the policy
of our political institutions, or the manners of the citizens of the United
States, that any ministerial officer having public duties to perform, should
be above the compulsion of law in the exercise of those duties. As a
ministerial officer he is compellable to do his duty, and if he refuses, is
liable to indictment.66
Chief Justice Marshall noted that purely ministerial responsibilities
were reviewable by the courts, while discretionary functions, including
those arguably “political,” as when the Secretary of State advises the
president on matters of foreign policy—are not justiciable.67 This
distinction is relevant to judicial confirmation proceedings because while
setting a hearing for a Supreme Court nominee appears purely ministerial,
there are many underlying political considerations. Such considerations,
for example, may include: the controlling party’s desire to obtain a nominee
favorable to its ideology, the research the senators deem necessary to make
a determination of suitability, and even determinations about the questions
posed to the nominee at the hearing. These political considerations are
deeply entangled with what seems like a purely ministerial act, and
accordingly, the confirmation hearings are certainly political. As a result,
courts will hesitate, except perhaps in the most egregious of situations, to
get involved for fear of the Court appearing partisan in resolving the
dispute.68
64.
65.
66.
67.
68.
Id.
See KATHLEEN M. SULLIVAN & GERALD GUNTHER, CONSTITUTIONAL LAW 11 (15th ed., 2004).
Marbury, 5 U.S. at 149–50.
See id. at 166.
The Court could construe the political question doctrine less constrictively and enable a lower
court to issue a mandamus to the Senate if it refuses to fulfill its duty in the confirmation process.
However, since the Senate only indicated delaying the confirmation process until after the
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In Marbury, because the commissions were completed before the prior
administration left office and all that was left was their delivery, Chief
Justice Marshall determined “[t]hese duties are not of a confidential nature,
but are of a public kind, and [the President’s] clerks can have no exclusive
privileges.”69 This is notable because courts have interfered with what
seems to be a political question, but the interference was justified to ensure
a law had not been broken; it was not directed toward affecting the political
outcome of the determination.70
In contrast, courts’ interference is not justified where the issue merely
concerns the logistics of confirmation proceedings for a Supreme Court
nominee because no law is broken by this exercise of discretion. It is the
political concerns of the Senate, however, that are at stake. The
Constitution is silent as to how the process should go forward, in effect
leaving those matters solely to the Senate’s own rules of procedure and the
Constitution’s expectations for political leaders. Thus, in regards to judicial
enforcement of the constitutional requirements for filling Supreme Court
vacancies, it is unlikely the courts will step in to ensure the Senate fulfills
its duties.
If not the courts, where does enforcement for filling vacancies lie once
the president has submitted a nomination? Does it lie with the people as a
political matter? As a political branch, the Senate is ultimately subject to
the will of the people; thus, if the people disagree with the way their
senators behave, they can express their discontent at the polls during the
next Senate election. Ultimately, the people have the enforcement power to
ensure the Senate performs its duties.71 Since the courts will not resolve the
69.
70.
71.
presidential election, the temporal window was likely too narrow for any court to find the issue
justiciable.
Marbury, 5 U.S. at 141.
See, e.g., Royal Props. v. The City of Knoxville, 490 S.W.3d 1, 8 (Tenn. Ct. App. 2015) (ordering
a city council to take a vote when the court thought a definite ruling would help determine
whether a law was violated). Petitioner appealed ruling that the Knoxville City Council acted
lawfully when it failed to exercise its review authority by voting on whether the denial by the
Metropolitan Planning Commission of a surface parking lot was a permitted use. Id. The
Tennessee Court of Appeals remanded the case “to the Knoxville City Council for a definitive
ruling on whether the requested surface parking lot is permissible as a use permitted on review,”
noting that “a crucial test distinguishing legislative acts from administrative acts is whether the
action taken (resolution or ordinance) makes new law or executes one already in existence.” Id. at
7-8. The appellate court noted that, in reviewing the City Council’s decision, the trial court “may
not (1) inquire into the intrinsic correctness of the decision, (2) reweigh the evidence, or (3)
substitute their judgment for that of the board or agency.” Id. at 7. The trial court may, however,
“review the record solely to determine whether it contains any material evidence to support the
decision because a decision without evidentiary support is an arbitrary one” in violation of law.
Id.
See Part VI infra.
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issue, Part V proposes political guidelines for the Senate to follow to avoid
future holdouts.
V. POLITICAL GUIDELINES TO AVOID FUTURE HOLDOUTS
This Part suggests a set of political guidelines that are not justiciable,
but which inconspicuously operate to guarantee a properly functioning
system. Some of the suggested guidelines are already practiced as a matter
of good politics and common sense. Nevertheless, it is important to
understand how these guidelines both derive from the constitutional system
of government the Founders sought to provide and respect the difference in
roles between the political and judicial branches. Perceiving these
guidelines as supporting the constitutional framework will decrease the risk
of the guidelines being altered by changing political agendas.
While the proposed guidelines may not be justiciable, they should be
afforded great deference in the court of public opinion, as they fit well
within the democratic order that the Constitution instantiates, as shown
infra. As the philosopher H. L. A. Hart argues, the Constitution along with
its various interpretations by the Supreme Court provides the “Rule of
Recognition” that affords final public legitimacy to everything else
Congress or the president does.72 The Constitution achieves this legitimacy
by limiting the authority of the political branches from just gratuitously
advancing their own political agendas and by affording rights to minorities
who can rely on the courts to remain free.
In order to guarantee long-term democratic success, the Constitution
must remain above conventional partisan politics. This, however, raises the
issue of separating the politics discussed in Part III, that are inherent in the
president’s nominations and the Senate’s confirmations, from the politics
72.
See H. L. A. HART, THE CONCEPT OF LAW 145 (Penelope A. Bulloch & Joseph Raz eds.,
Clarendon Press 2nd ed. 1994). While laws are deemed valid if adopted in accordance with the
requisite constitutional procedures, the Constitution itself may not be valid since the Articles of
Confederation required amendments to be unanimously adopted by Congress and all thirteen
state’s legislatures—not by special state conventions. See ARTICLES OF CONFEDERATION 1781,
art. XIII, para. 2; see also HERBERT J. STORING, WHAT THE ANTI-FEDERALISTS WERE FOR: THE
POLITICAL THOUGHT OF THE OPPONENTS OF THE CONSTITUTION 13 (Univ. of Chicago Press,
1981). But see FORREST MCDONALD, NOVUS ORDO SECLORUM: THE INTELLECTUAL ORIGINS OF
THE CONSTITUTION 279 (Univ. Press of Kansas, 1985).
[T]he convention recommended that Congress forward the [Constitution] to the states
and that it should afterwards be submitted to a Convention of Delegates, chosen in
each State by the People thereof, under the Recommendation of its Legislature, for
their Assent and Ratification. Congress unanimously resolved to follow that
recommendation, and the legislatures of all thirteen states voted to abide by it.
Id. At this time, “the People” was limited to men who owned a certain amount of property, and
Article VII of the Constitution required ratification by only nine states. See id. at 25.
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that result in a mishandling of the procedures. Affording recognition to the
following guidelines provides legitimacy to the Supreme Court nomination
process by ensuring that process is carried out as intended by the Framers in
devising the Constitution.
1. No Unnecessary Delays
The Constitution’s guidance for filling a vacancy does not suggest that
this process can be artificially postponed.73 In fact, it suggests the contrary.
As mentioned above, Article II, Section 2, allows the president to make a
recess appointment, which expires at the end of the Senate’s next session.74
This suggests the Framers intended for the Senate to act promptly on recess
nominations, a fortiorari it intended the Senate act at least as promptly
upon permanent nominees.75 Indeed, the language of Article II, Section 2,
supports this conclusion as it uses “shall”—not “may”—in directly
prescribing the president’s duties and indirectly prescribing the Senate’s
duties.76 Thus, the first guideline forbids unnecessary delays in the
nomination process; any delay in the process must be necessary for the
Senate to function. That is, to perform its job by way of deliberating and
voting on the nominee.77
To fulfill this guideline, the Senate may not delegate an appointment
to a future president or Senate. Allowing the Senate to delay appointments
undermines both branches’ dual responsibility to facilitate the
constitutionally mandated process that keeps the Court outside normal
politics. By the same token, postponing the confirmation process is
detrimental to the resolution of important issues that are ripe for decision
because, with only eight justices, the Court will not be able to resolve close
cases and provide guidance to the lower courts if it is evenly divided. The
absence of a ninth judge leaves “matters unresolved, keeping individuals,
businesses, and communities in limbo and uncertainty.”78
73.
74.
75.
76.
77.
78.
See U.S. CONST. art II, § 2, cl. 2.
Id. art II, § 2, cl. 3.
Id.
See id. art II, § 2, cl. 2.
For example, at the time of the Constitution’s ratification, delays may have occurred because it
took longer to send messages over land by horse and stagecoach. See The United States Postal
Service: An American History 1775–2006, GOV’T REL., U.S. POSTAL SERV. (Nov. 2012),
https://about.usps.com/publications/pub100.pdf.
Minow & Tacha, supra note 6; see also John Bisognano, What They are Saying in Massachusetts
About the Supreme Court Nomination, WHITE HOUSE (May 5, 2016, 3:08 PM),
https://www.whitehouse.gov/blog/2016/05/05/what-theyre-saying-massachusetts-about-supremecourt-nomination (“Two-thirds of Americans want the senators to do their job: Meet Garland,
hold a fair hearing, and vote to approve or disapprove.”).
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The Supreme Court accepts very few cases annually,79 and many of
the cases the Court hears involve circuits splits or important federal
question issues.80 Accordingly, many of the issues the Court resolves are
divisive, and it is not unusual for the justices to disagree on the correct
outcome.81 In these situations, which may involve conflicts over culture,
religion, or fundamentally different interpretations of the relevant law, the
failure to have nine justices to decide the matter will often lead to the denial
of important rights. Here, the role of the ninth justice serves to break a tie
when the justices disagree on a divisive issue. The longer the Court
operates with an even number of justices, the longer it will struggle to
adequately provide guidance on the issues it decides.
For these reasons, the president should always nominate in a timely
fashion, and the Senate should promptly offer advice and consent on the
nominee if the nominee is overall qualified for the position. The Senate’s
failure to complete the confirmation process after President Obama
nominated Judge Garland created a dangerous precedent for future political
disruptions of the Supreme Court and other federal court nominations.
2. Respect the Representative Form of Government
The second guideline is implicit from the Constitution’s text insofar as
it establishes a representative democracy.82 In a representative democracy,
the people’s current representatives—not the people themselves—appoint
justices to the Supreme Court.83 Americans indirectly make the decision by
voting in presidential and congressional elections.84 Indeed, in regards to
79.
80.
81.
82.
83.
84.
See Supreme Court Procedure, SCOTUSBLOG, http://www.scotusblog.com/reference/educationalresources/supreme-court-procedure/ (last visited Sept. 25, 2016) (“Of the 7,000 to 8,000 cert.
petitions filed each Term, the Court grants cert. and hears oral argument in only about 80.”).
See Rules of the Supreme Court of the United States, Pt. III, Jurisdiction on Writ of Certiorari,
LEGAL INFO. INST., https://www.law.cornell.edu/rules/supct/rule_10 (last visited Nov. 18, 2016);
see also H. W. PERRY, DECIDING TO DECIDE: AGENDA SETTING IN THE UNITED STATES SUPREME
COURT 251 (Harvard Univ. Press 1991) (discussing the interworking of how the Supreme Court
decides which cases to grant certiorari).
See Supreme Court Procedure, supra note 79.
See U.S. CONST. art II, § 2, cl. 2.
Representative democracy is defined as “[a] government by representatives elected by the
people.” Representative democracy, BALLENTINE’S LAW DICTIONARY (3d ed. 1969). By
contrast, in a direct democracy, as was practiced in ancient Athens, the people decide all questions
in assemblies. See Mark Cartwright, Athenian Democracy, ANCIENT HIST. ENCYCLOPEDIA (Oct.
13, 2014), http://www.ancient.eu/Athenian_Democracy/.
See U.S. CONST. art I, § 3, cl. 2 (providing for scattered Senate elections based on an initial
division of the members of the first Senate into three parts). The Seventeenth Amendment did not
alter this division when it provided for popular election of the senators, thereby maintaining the
scattered election of senators set out in Article I. See id. amend. XVII (“This amendment shall not
be so construed as to affect the election or term of any Senator chosen before it becomes valid as
part of the Constitution.”).
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federal level appointments, the first representative of the people is the
incumbent president, who has the duty to nominate by virtue of being
elected to office.85 Then, the members of the Senate who, by way of
tradition and rules of procedure, are duly entrusted to ensure the nominee is
fit for the position.86 Beyond these duties, there will often be compromises
between the president and the Senate over who to appoint, especially when
the Senate is controlled by the opposite political party. It is unclear,
however, where the line of compromise should be drawn, as the
Constitution leaves the matter to the political branches to resolve.
Still, wherever the line is drawn, it should at least affirm the Founders’
original plan to create a republican form of government, which assures
continuity by having the president elected every four years,87 members of
the House of Representatives every two years, senators every six years,88
and an independent federal judiciary with life tenure89 to be appointed
expeditiously as vacancies occur. This particular republican form is best
exemplified by the structure the federal government takes under the
Constitution, in which the people act through elected representatives,
except when voting on constitutional amendments, as described in Article
V.90 It is also different from other republican forms of government insofar
as it divides federal and state authority; a republican form of government
could exist with merely a central authority.
Moreover, the Constitution itself alludes to the federal form of
government in Article IV, Section 4, where it mandates: “The United States
shall guarantee to every state in this Union a Republican Form of
Government . . . .”91 Of course, it does not place the same requirement on
the federal government because the Constitution provides that form to the
federal government, with its own separation of powers, as made clear by
James Madison in Federalist 39.92 Thus, protecting this form of
85.
86.
87.
88.
89.
90.
91.
92.
Id. art. II, § 2, cl. 2 (“[The President] shall appoint Ambassadors, other public Ministers and
Consuls, Judges of the supreme Court, and all other Officers of the United States, whose
Appointments are not herein otherwise provided for, and which shall be established by
Law . . . .”); see also Nat’l Labor Relations Bd. v. Noel Canning, 134 S. Ct. 2550, 2577 (2016)
(acknowledging the president’s authority by ruling that the recess appointment power authorizes
the president to fill any vacancy existing during a recess).
See generally DENIS STEVEN RUTKUS, CONG. RESEARCH SERV., RL31989, SUPREME COURT
APPOINTMENT PROCESS: ROLES OF THE PRESIDENT, JUDICIARY COMMITTEE, AND SENATE 22-43
(2010) (providing a general review of the history of Supreme Court appointments).
U.S. CONST. art. II, § 1.
Id. art. I, §§ 2-3.
Id. art. III, § 1.
Id. art. V.
Id. art. IV, § 4.
See generally THE FEDERALIST No. 39 (James Madison) (arguing the plan of the Constitution is to
create a republican form of government for the American people).
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government and the rights it secures, along with considering international
law,93 is the proper politics of the situation for the president and senators to
contemplate because it respects the Founders’ plan of government, and it
does not unnecessarily politicize the federal judiciary, especially the
Supreme Court.
3. Adhering to a Confirmation Process
The next guideline prescribes how the confirmation process should
proceed. This involves two traditionally recognized events. First, the
Senate should hold hearings after a proper investigation into the candidate,
as might be relevant to the fitness of a Supreme Court justice.94 This
follows the Judiciary Committee’s long-standing tradition of holding open
hearings.95 Second, after the Judiciary Committee concludes its hearings,
the Senate should vote on whether to confirm the nominee, unless the
nominee withdraws from further consideration. Although, the Judiciary
Committee could terminate the nominee’s chances prior to the Senate’s
vote by deciding not to report a nomination, the Committee’s practice is to
report all nominees to the full Senate, including those that it opposes.96
93.
94.
95.
96.
The Constitution provides international law should be acknowledged. See U.S. CONST. art. I, § 8,
cl. 10; id. art. II, § 8, cl. 2; id art. VI, § 2; see also The Paquete Habana, 175 U.S. 677, 700 (1900)
(“International law is part of [U.S.] law, and must be ascertained and administered by the courts
of justice of appropriate jurisdiction as often as questions of right depending upon it are duly
presented for their determination.”).
See Warren Fiske & Sean Gorman, Herring Says All Supreme Court Nominees Back to 1875 Got
a Confirmation Hearing, POLITIFACT (Mar. 20, 2016), http://www.politifact.com/
virginia/statements/2016/mar/20/mark-herring/herring-says-all-supreme-court-nominees-back1875-/ (discussing the Judiciary Committee’s historical practice of voting on nominees without
hearing testimony from anyone).
See id. In the nineteenth century, hearings held before the Judiciary Committee were closed to the
public. Id. In fact, it was not until the 1930s, with two exceptions—in 1916, the Judiciary
Committee held an open session for nominee Luis D. Brandeis, and in 1925, an open session was
held for Harlan S. Stone, who became the first nominee to appear and testify—that open hearings
became the regular practice. See RUTKUS, supra note 86, at 18.
Barry J. McMillion, Supreme Court Appointment Process: Consideration by the Senate Judiciary
Committee 17 (Oct. 19, 2015), https://www.fas.org/sgp/crs/misc/R44236.pdf.
Usually within a week of the end of hearings, the Judiciary Committee meets in open
session to determine what recommendation to report to the full Senate. The committee
may (1) report the nomination favorably, (2) report it negatively, or (3) make no
recommendation at all on the nomination. A report with a negative recommendation
or no recommendation permits a nomination to go forward, while alerting the Senate
that a substantial number of committee members have reservations about the
nomination.
Id. at 15.
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Thus, the Senate makes the final determination of the nominee’s
confirmation.97
At first glance, this process may appear merely ministerial; a deeper
look, however, reveals the underlying political considerations, including
timing (especially in a presidential election year), background research, and
related matters.
Nevertheless, the president and the Senate have
constitutional obligations: the president to nominate and the Senate to
advise and consent on the nomination.98 This means the senators have a
duty, regardless of whether the duty might be enforced by a court, not to be
merely perfunctory in approving or disapproving of a nominee, but to be
mindful of their constitutional obligation to confirm only a qualified
candidate for the position.
Article II’s appointment procedures must be followed in order to
prevent political obstructionism.
The Constitution’s process for
appointment—requiring the president to nominate and the Senate to advise
and consent—is mandatory. The Senate can make constitutionally
legitimate arguments that require compromise with the president, including
arguments about judicial philosophy and the nominee’s respect for rights
previously recognized. Moreover, the Senate can reject nominees who are
unqualified because of education, training, or past illegal behavior. This is
why the Constitution vests the power of appointments in both branches of
government—so neither branch has the sole power to decide and politicize
the process.
4. The Nominee’s Qualifications
The fourth guideline concerns the ability of the nominee to adequately
handle the matters that come before the Supreme Court. The permitted
politics should not encompass unscrupulous tactics by the Senate or the
president, such as causing delay in hopes of obtaining a more politically
favorable nominee in the future. Rather, these politics must embrace the
higher law of the Constitution that seeks consensus around a candidate
based on his or her overall qualifications. These qualifications include the
candidate’s legal expertise, temperament, sensitivity to the concerns of the
political branches and relations among the institutions of government,
respect for international law and for the rights people currently possess
97.
98.
Id. at 18; see also RUTKUS, supra note 86, at 17–18 (discussing the early history of the Judiciary
Committee and affording deference for fellow senators), 21–22 (discussing the present prehearing stage of a confirmation).
See U.S. CONST. art II, § 2, cl. 2.
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(unless seriously in error).99 Other considerations, including a nominee’s
promise to decide a particular case in the future a certain way, should not be
considered. Although such promises would not be judicially enforceable,
the mere transaction deludes the public’s perception of the Court’s
legitimacy by making the Court appear less impartial.100
5. Limited Inquiry into the Candidate’s Political Views
Questions will arise from various constituencies regarding the
nominee’s propensity to protect their valued rights. Accordingly, the fifth
guideline requires the president and the Senate to be circumspect in
determining if the nominee exhibits the sensitivity to the concerns of
various constituencies. The nominee’s testimony, published work, or prior
judicial opinions, are all relevant to help make that determination. It is
particularly helpful to hold hearings where the nominee can offer testimony
about his or her judicial philosophy and respond to senators’ questions that
might be derived from, among other sources, past scholarly presentations or
judicial opinions. To this extent, politics may enter, but only in this limited
way, to ensure the candidate is appropriate for the position. This limited
exception is important to determining that the nominee, as a justice, will be
able to articulate a decision that, even if others disagree with, will
nevertheless be respected as a fair and reasonable interpretation of the
law.101
It is important to remember why the Framers set up the judiciary
separate from the political branches: the political branches, unlike the
courts, are often motivated by an array of crass concerns, including how
99.
There may be times that substantial legal grounds warrant the questioning of certain rights or
previous decisions. See, e.g., Brown v. Bd. of Educ., 347 U.S. 483 (1954) (discussing evidence
that a matter warrants reconsideration may include social science data about the effects of separate
educational systems on minority children).
100. Although approval ratings often fluctuate between contiguous years, Gallup polls have been fairly
consistent over the past sixteen years in showing public approval for the Supreme Court. See
Supreme Court, GALLUP, http://www.gallup.com/poll/4732/supreme-court.aspx (last visited Sept.
25, 2016). This is likely because the Court is basically an anti-majoritarian institution perceived
to operate outside normal politics. See generally ALEXANDER M. BICKEL, THE LEAST
DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OF POLITICS 235–43 (Bobbs-Merrill
1962). Another reason for the Court’s high approval, considering its lack of power to ensure its
decisions are followed, is because it leads by persuasion, never being too far ahead or behind the
society in which it operates. See id. “The Court is a leader of opinion, not a mere register of it,
but it must lead opinion, not merely impose its own; and—the short of it is—it labors under the
obligation to succeed.” Id. at 239.
101. See JOSEPH RAZ, BETWEEN AUTHORITY AND INTERPRETATION 353 (2009) (“[W]hen reflecting on
constitutional interpretation, we should start not from the fact that certain methods of
interpretation are used, and not others, but from the question: Why is interpretation so central to
constitutional adjudication?”).
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adopting one position over another might benefit one’s reelection. Judges,
however, must decide cases based on what the law requires, not on personal
beliefs or alternative political agendas.102 Hence, judges are granted life
tenure.
However, in deciding what the Constitution requires, legal
philosopher Joseph Raz denies there can be any clear way to separate what
the law is from how it should develop, even though constitutional
interpretation is not just applied moral reasoning.103 This problem arises
because in discerning the Constitution’s mandates, the words relied upon,
along with the provision’s purported purpose, need to be interpreted. In
situations where the meaning is clear, however, a judge should decide the
case accordingly or resign if he or she believes doing so would be grossly
immoral. 104
Moreover, the notion that delaying the nomination provides greater
certainty to predict how a nominee might decide certain future cases, as
opposed to gathering a general idea of the nominee’s overall approach, is
likely to be unsuccessful. Unpredictable factual situations will arise. This
occurs because new factual situations often produce complexities that may
only be appropriately resolved by new understandings of morality and
human psychology.
Additionally, as a matter of constitutional
interpretation, Professor Ronald Dworkin has noted:
Any case that arises under the ‘vague’ constitutional guarantees can be
seen as posing two questions: (1) Which decision is required by strict, that
is to say faithful, adherence to the text of the Constitution or to the
intention of those who adopted that text? (2) Which decision is required
by a political philosophy that takes a strict, that is to say narrow, view of
the moral rights that individuals have against society? Once these
questions are distinguished, it is plain that they have different answers.
The text of the First Amendment, for example, says that Congress shall
make no law abridging the freedom of speech, but a narrow view of
102. See, e.g., Romer v. Evans, 517 U.S. 620, 653 (1996) (Scalia, J., dissenting) (arguing the
Majority’s decision to strike down Colorado’s Amendment 2 was “an act not of judicial judgment,
but of political will”); see also SCALIA, supra note 13, at 22.
103. See RAZ, supra note 101, at 353–57, 361. “There is no general theory of constitutional
interpretation, if that is meant to be a general recipe for the way such interpretation should be
conducted that is set out in some detail in order to guide the interpreter every step of the way with
practical advice.” Id. at 357.
104. Judges are bound by stare decisis to provide certainty in the law, unless the principles of this
doctrine warrant reconsideration of the matter. See id. at 353.
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individual rights would permit many such laws, ranging from libel and
obscenity laws to the Smith Act.105
Of course, it is appropriate to question the nominee’s view of the
various guarantees to gain perspective on his or her understanding of the
issues. Still, attempts to predict a nominee’s view based solely on the
political affiliation of the president who nominates the candidate or even
the nominee’s putative judicial philosophy will be largely unsuccessful. At
most, this will only provide a shallow understanding of the way the
nominee will begin his or her work on the Court.
Inevitably, questions will arise over the course of a justice’s tenure
that will cause a shift in ideological views.106 President Eisenhower’s
nominee, Earl Warren, for example, was considered a judicial conservative
when appointed but veered from just protecting legislative prerogatives
toward protecting background rights by ordering school desegregation and
recognizing rights of the accused that place specific duties on law
enforcement.107 On the other hand, a judge considered a judicial activist,
such as President Kennedy’s nominee, Byron White, turned out to be far
more conservative than anticipated. For example, Justice White wrote the
majority opinion in Bowers v. Hardwick, which allowed states to criminally
prosecute same-sex couples engaged in private sexual acts in the home.108
Moreover, he joined the dissent in Roe, recognizing a woman’s right to
have an abortion, and Miranda, affording defendants the right to remain
silent and have an attorney present before an interrogation.109 This shows
105. RONALD DWORKIN, TAKING RIGHTS SERIOUSLY 133 (Harvard Univ. Press, 1978). The Alien
Registration Act of 1940 (“Smith Act”) imposed criminal sanctions for advocating overthrowing
the U.S. government and required any alien living in the United States to register with the
government. See 18 U.S.C. § 2385 (1940).
106. See generally VINCENT J. SAMAR, JUSTIFYING JUDGMENT: PRACTICING LAW AND PHILOSOPHY 68
(Univ. Press of Kansas 1998) (providing a metatheory for judges to depart from their typical legal
philosophy when necessary to preserve background rights or institutional rights and prerogatives).
107. See e.g., Brown v. Bd. of Educ., 347 U.S. 483 (1954) (holding racial segregation in the schools to
be unconstitutional); Miranda v. Arizona, 384 U.S. 436 (1966) (protecting the rights of the
accused); Engel v. Vitale, 370 U.S. 421 (1962) (ending public school sponsored prayers);
Reynolds v. Sims, 377 U.S. 533 (1964) (establishing one man, one vote as a constitutional
requirement for apportionment of legislative districts).
108. See e.g., Bowers v. Hardwick, 478 U.S. 186 (1986) (holding states can criminally prohibit adult
from engaging in consensual same-sex behavior in the home) overruled in Lawrence v. Texas,
539 U.S. 558 (2003)).
109. Roe v. Wade, 410 U.S. 113 (1973) (White, J., dissenting) (recognizing a woman’s constitutional
right to an abortion); Miranda, 384 U.S. 436 (1966) (White, J., dissenting) (requiring police to
inform a defendant of his right to counsel and to avoid self-incrimination before proceeding with
an interrogation).
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the process of judging cannot easily be predicted110 because unanticipated
factual situations along with varying understandings of human behavior
will present new challenges for courts to resolve.111
Thus, the nominee should be questioned on more enlightening topics
concerning views the nominee articulated in lower court rulings or
scholarly writings, as these subjects may afford a better understanding of
where the candidate’s sensitivities lie. This information can be obtained
from an examination during the hearings of the nominee’s record and by
probing questions concerning the nominee’s commitment to following stare
decisis. Such a forthright examination should always be released to the
public to ensure legitimacy of the process. In no event, however, should a
nominee be required to promise a particular outcome for any case yet to
come before the Court or even to express a preferred outcome. For that
would undercut the Court’s ability to fulfill its duty of affording a fair and
impartial hearing to all those who come before it.
Understandably, this uncertainty may be uncomfortable to those who
prefer to know in advance exactly how the Court will decide a future case,
but perhaps this is the price for having a truly independent judiciary. In the
final analysis, if the Court is perceived to venture too far outside what the
country believes the law provides, there are political checks by way of
Congress increasing the number of justices appointed to the bench112 or, in
a worst case scenario, impeachment.113
VI. POLITICAL PHILOSOPHY
This Part provides a philosophical account for the legitimacy of the
Constitution, which the above guidelines further, by showing how it
supports a conception of political morality particularly suited to provide
stability and protection of fundamental rights in a modern pluralistic
democracy.
110. See SAMAR, supra note 106, at 76–77, for a discussion laying out specific metacriteria to ensure
departures from precedent are just, rationally unified, and not a product of idiosyncratic whims or
personal biases.
111. A modern example was presented in Obergefell v. Hodges, where the Court determined same-sex
marriage is protected by the Due Process Clause of the Fourteenth Amendment. See generally
Obergefell, 134 S. Ct. 2751 (2015).
112. U.S. CONST. art. II, § 1.
113. Id. art. II, § 4.
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A. The Constitution’s Inherent Conception of Political Morality
A society marked by reasonable, but different comprehensive moral
views, can operate as a whole, so long as it is able to agree on a political
conception of justice “latent in the public political culture of a democratic
society.”114 The Philosopher John Rawls posed the question: “[H]ow is it
possible for there to exist over time a just and stable society of free and
equal citizens, who remain profoundly divided by reasonable religious,
philosophical, and moral doctrines?”115 Rawls believed that society must
be well ordered and united not in its moral beliefs, but in its political
conception of justice, where justice becomes the focus of an overlapping
consensus of reasonable comprehensive doctrines.116 Regardless of
whether Rawls’ statement applies to the current American political climate,
his idea of a well-ordered society is not out-of-place. Indeed, his idea is
advanced when citizens from various backgrounds and beliefs acknowledge
they are equal before the law and trust the judiciary will ensure that
equality.
Many of the most pernicious disagreements that most profoundly
divide people occur over religion, metaphysics, and ethics because these
issues are likely to make people feel unequal for who they are or what they
believe. This is further provoked by political attempts to force a single
view to govern a wide range of situations making “citizens with opposing
views and interests highly suspicious of one another’s arguments.”117 This
is where rule of law comes apart and is replaced by crass partisan politics.
Still, once this is understood as the potential danger to the democratic order,
the possibility of real consensus materializes even among those who might
otherwise seriously disagree. That consensus will arise, however, only if
the laws are seen to be founded not on some metaphysical idea of justice,
which might alienate those who hold a different view, but on the basis of
social cooperation to discover common interests. At this point, the
judiciary plays a pivotal role separate from the legislature, provided it has
114. JOHN RAWLS, POLITICAL LIBERALISM 175 (Columbia Univ. Press 1993); see also THE
FEDERALIST NO. 51 (James Madison) (arguing that the proposed republican form of government,
with its separation of powers and multiplicity of parties’ interests, disallows collations to “take
place on any other principles than those of justice and the general good”).
115. RAWLS, supra note 114, at 4. But see ALAN GEWIRTH, SELF-FULFILLMENT, 77–87, 151–58
(Princeton Univ. Press 1998) (distinguishing universal morality, in which reason and human
purpose are foundational and apply to everyone, from more particularistic moralities, as particular
groups may adopt to provide members a unique kind of self-fulfillment, provided respect is shown
for the universal rights of nonmembers).
116. RAWLS, supra note 114, at 35.
117. Id. at 160–62.
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not become so politicized by the confirmation process that it is no longer
able to function or be viewed as truly independent.
This is especially true when fundamental constitutional questions are
at stake, where the resolution can operate as a modus vivendi,118 like
toleration, to allow different political conceptions of society to peacefully
coexist knowing everyone’s constitutional rights are being secured.119 Such
constitutional consensus initially “establishes democratic electoral
procedures for moderating political rivalry within society” and includes
“agreement on certain basic political rights and liberties,” such as “the right
to vote and freedom of political speech and association, and whatever else
is necessary for electoral and legislative procedures of democracy,”
including equality before the law.120
Political instability arises in the move from the constitutional
consensus to what Rawls calls, “overlapping consensus” where legislation
may become dominant and group interests take greater hold.121 The
potential instability can be reduced only by removing from the political
agenda specific rights and liberties that preserve the democratic process to
go forward.122 This is why the Supreme Court does not operate from a
specific political platform like political parties or elected representatives.
Rather, the Supreme Court operates, or should operate, as an “exemplar of
public reason” derived from a principled ideal of the basic rights and
liberties that constitute higher law and avoid the frailties of ever-changing
political agendas.123 Even when people disagree about particular Supreme
Court decisions, their disagreement should be checked by how well the
process serves the democratic ideal of living in a free society that protects
basic rights of minorities. When the Constitution accomplishes this, it
speaks with moral authority, notwithstanding that not everyone will morally
agree with every decision the Court makes. But, if this is the view, why do
questions like whether the Senate should do its job and hold confirmation
hearings for a judicial nominee even arise?
118. Defined as “[a] temporary, provisional arrangement concluded between subjects of international
law and giving rise to binding obligations on the parties.” Modus vivendi, BLACK’S LAW
DICTIONARY (10th ed. 2014) (“[Modus vivendi] is an instrument of toleration looking towards a
settlement, by preparing for or laying down the basis of a method of living together with a
problem or by bridging over some difficulty pending a permanent settlement.”).
119. RAWLS, supra note 114, at 158.
120. Id. at 158–59.
121. Id. at 161.
122. See id.
123. Id. at 231.
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B. Maintaining the Constitution’s Political Morality in a Nearsighted
System
These questions arise because American politics exhibit a primarily
short-term view of the public interest, which often makes it appear closely
aligned to private or specific group interests.124 Two factors may account
for this: the age of the country and the election cycle. First, the country is
relatively young by European and Asian standards, so there is not a lot of
history to support the development of longer-term public interests that
might alter the framework of governmental institutions.125 Second, the
American election cycle for electing a president, senators, and members of
the House of Representatives accounts for it.126 Indeed, much of the
political disruption that appears to permeate higher law is a result of these
relatively short-term bouts for political office that focus on short-term
interests of specific groups.
For this reason, it is imperative that every candidate for public office,
upon swearing an oath to uphold the Constitution, understands the longerterm obligations that come with the position, especially regarding matters
like the appointment of federal judges who will possess life tenure.127 The
Constitution requires that these longer-term positions should not suffer at
the polls and that they be capable of rendering higher law constitutional
decisions. By the same token, it ensures that nominees be properly vetted
by having the Senate provide a separate role of advising and consenting
upon the president’s nomination. For the Constitution does not allow for
only short-term politics to dominate, but in fact requires, political officials
and federal judges to follow the higher law of the Constitution. For this
reason, the Founders were adamant in ensuring the judiciary be nonpolitical. Similarly, the Senate must at times be less political, like when
124. See generally Anthony Salvanto et. al., CBS/NYT Poll: Donald Trump Leads, Strong on
Terrorism, Economy, CBS NEWS (Dec. 10, 2015, 6:32 PM), http://www.cbsnews.com/
news/cbsnyt-poll-donald-trump-leads-strong-on-terrorism-economy/ (explaining that voters tend
to align with particular candidates based on their immediate concerns, like the economy or
terrorism, rather than long-term concerns like global warming or the constitutional rights and
duties that may be affected by the candidate’s presidency).
125. See RAWLS, supra note 114, at 217 (“[The] exercise of political power is proper and hence
justifiable only when its exercise is in accordance with a constitution the essentials of which all
citizens may reasonably be expected to endorse in light of the principles and ideals acceptable to
them as reasonable and rational.”); see also BRUCE ACKERMAN, WE THE PEOPLE, VOLUME 1:
FOUNDATIONS 6 (Harvard Univ. Press, 1991) (describing how a “dualist Constitution”
distinguishes between “[d]ecisions by the people [which] occur rarely, and under special
constitutional conditions” and “[d]ecisions made by the government [which] occur daily, and also
under special conditions”).
126. See supra Part V, § 2.
127. U.S. CONST. art III, § 1.
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confirming federal judges, if the Constitution is to continue to have a
meaningful, lasting effect on America’s representative democracy.
VII. CONCLUSION
This Article provides direction for future confirmations occurring
during a presidential election year when the president and Senate majority
are from different parties. In doing so, it has sought to remind the political
branches of their respective duties to higher law and to avoid the temptation
to collapse to mere partisan considerations. This Article has also displayed
why the issue of holding hearings and voting on Supreme Court nominees
should not be reduced to the same politics that accompany normal
lawmaking. Rather, at least with Supreme Court nominations, where the
integrity of the Constitution is itself at stake, something more circumspect
is required. In particular, this requires a long-term vision of how the
constitutional plan fits within democratic pluralism, and how the basic
institutions of society would collapse if Americans no longer felt that their
rights are protected by an independent judiciary. Absent adherence to the
obligations of the Constitution, the Senate risks deterioration of the social
contract that binds all Americans and potentially the end of the
constitutional form of government Americans have cherished for over two
centuries. Certainly, short-term politics alone cannot be what the Founders
intended for America when they began their effort to create a new nation
with those now famous words: “We the People . . . .”128
128. U.S. CONST. pmbl.